Few people today give much thought to how astoundingly far beyond the contours of American understanding of governmental power the 1964 Civil Rights Act went. Here was a law that told people, businesses, whom they must hire, whom they must serve, how they must disregard their own ideas and feelings in the conduct of their private businesses because the government commanded them to do so.
Of course, there may be no one who would question that the law was salutory, serving a far higher and better purpose than the banal notion that our personal right to conduct business with whomever we choose, hire and fire whomever we choose and serve whomever we choose. What about our personal freedom? Ending discrimination was more important, and so government crossed a line of dictating how individuals and business would conduct themselves, even if government stretched its authority to the breaking point.
If the government was going to force Southern businesses to “serve Negroes,” then the government should have to pay the businesses for each Negro they allowed on their property.
That, at least, was the Supreme Court argument of Moreton Rolleston Jr. shortly after Congress passed the Civil Rights Act of 1964. The white owner of an Atlanta motel, Mr. Rolleston took pride in never serving Black customers. Yet the new civil rights law prohibited him from discriminating on the basis of race.
The Supreme Court blew off Rolleston’s Takings Clause argument based on precedent that a taking involved land, emphasizing the first word over the second in the phrase “property right.” Whether a flex to serve the Great Society or a reasoned constitutional decision, it was one that people would live with because racial discrimination was such a travesty that its elimination was worth turning a blind eye to possible overreach.
But as often happens, people remember the rubric but forget the rationale, and the overreach found new paths to take.
The new case, Cedar Point Nursery v. Hassid, involves California agribusinesses that each employ hundreds of farmworkers. Instead of discriminating against Black people, these businesses want to discriminate against union organizers.
One of those regulations, the “access rule,” gave union organizers a limited right to talk to farmworkers on company property. Up to four times a year, for 30 days at a time, properly identified organizers are allowed to approach farmworkers during their lunch breaks and for an hour before and after work.
Now, more than 40 years later, the same access rule is back before the U.S. Supreme Court. One of the largest grape growers in the nation, the Fowler Packing Company, has prevented the United Farm Workers from meeting with workers on company land. When the union filed a complaint with the state, Fowler joined another agribusiness, Cedar Point Nursery, and sued to strike down the access rule. They again argue that California must pay them not to discriminate against union organizers.
The argument is well-framed, raising the question of why a property owner is subject to a government command to allow outsides to come onto their property.
Yet in contrast with Mr. Rolleston’s blunt language, the agribusinesses’ lawyers have so far avoided much public scrutiny by speaking high legalese. The access rule “appropriates an easement in gross without compensation,” they write. They claim that “the right to exclude is too important to be left at the mercy of government officials who will inevitably seek as much public access as possible without paying for it.”
The plight of migrant farm workers was brought to national prominence when Cesar Chavez started the United Farm Workers, and California responded by giving union organizers a right to enter private property. While we may, as a nation, be willing to turn a blind eye to such rights for a purpose as critical as eliminating racial discrimination, is union organizing of sufficient importance?
That might sound great for opponents of organized labor. But Mr. Rolleston’s rule would affect far more than union organizing. For example, health and safety laws require businesses to give unwanted inspectors “access” to their workplaces. Mr. Rolleston’s rule would require the government to pay “just compensation” every time a health inspector searches for rats.
Of course, the analogy to health inspectors fails to recognize that the engaging in regulated commerce incorporates the implicit acquiescence of such intrusions. But then, isn’t the similarly true if one engages in farming for interstate commerce when the price of doing business exacted by the government is to allow union organizers entry?
And laws that prohibit employers from firing workers who complain of harassment also, in effect, protect these workers’ “access” to the workplace. Mr. Rolleston’s rule would require the government to pay employers to rehire anyone they illegally fired.
And this, indeed, demonstrates how the initial breaching of the barrier between the rights of an employer slid down the slippery slope into creating a “property right” to not only a job at the employer’s expense, but to a job where the employee’s work environment was not displeasing.
How far does that extension of government authority into the personal freedom of individual choice go? While we were willing to turn a blind eye to the constitutional limits that might have prevented the Civil Rights Act of 1964, it has since extended by baby steps into realms that were never intended at the outset. They are generally accepted now, both because we’ve acquiesced to the government’s regulating our private property and personal choices, and because we accept that the goals of such governmental intrusion are sufficiently good.
The point isn’t to argue that organizing migrant farm workers isn’t a worthwhile goal, just as maintaining a workplace without a hostile environment isn’t good. But if the government can enact laws that mandate people allow outsiders onto their property for socially beneficial purposes, there really isn’t any conceptual basis to prevent the government from dictating pretty much any aspect of our control over our property and, perhaps, our personal actions and thoughts. It might have been worth it to end racial discrimination in 1964, but did that crossing of the line of personal freedom mean the line was lost forever?